CASE NO. 03769 CRB-07-98-02 CLAIM NO. 700010740Workers’ Compensation Commission
AUGUST 17, 1999
The claimant did not appear at oral argument.
The respondent-appellants were represented by James Sullivan, Esq., Maher Williams.
The Second Injury Fund was represented by Sarah Posner, Esq., Assistant Attorney General.
This Petition for Review from the January 28, 1998 Finding and Dismissal of the Commissioner acting for the Sixth District was heard January 8, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
OPINION
JESSE M. FRANKL, CHAIRMAN.
The respondent employer and its insurer (hereinafter “respondents”) have petitioned for review from the January 28, 1998 Finding and Dismissal of the Commissioner acting for the Sixth District. In that decision the trial commissioner denied the respondents’ request to transfer liability to the Second Injury Fund pursuant to § 31-349. The respondents argue on appeal that the trier erred by failing to find that it provided timely notice to the Fund pursuant to § 31-349 as amended by P.A. 95-277, § 3 (b).
The trial commissioner found the following relevant facts. The claimant suffered a compensable injury on September 20, 1993. The respondent insurer initially provided timely notice to the Fund on January 10, 1995 that it was seeking transfer pursuant to § 31-349. On February 7, 1995 the Fund acknowledged receipt of the notice and acknowledged that an approved voluntary agreement was received with the notice letter, and noted a need for updated medical records. On July 1, 1995, the state legislature enacted P.A. 95-277 which amended § 31-349. The respondent insurer did not renotify the Fund pursuant to P.A. 95-277, § 3 (e) prior to October 1, 1995.
On December 28, 1995 the respondent insurer submitted a new notice to the Fund along with the $2,000.00 fee and supporting documentation. On December 29, 1995 the respondent insurer submitted a supplemental notice letter to the Fund with a tendered voluntary agreement with the compensation rate crossed out, signed by both parties, but not approved by a trial commissioner. The respondent insurer attempted to resolve issues surrounding the voluntary agreement and submitted redrafted voluntary agreements for approval from the Sixth District Workers’ Compensation Office in March of 1996. On March 13, 1996, the Sixth District returned said voluntary agreements because of issues regarding the claimant’s benefit rate, and said agreements were not approved until March 19, 1997. The trial commissioner concluded that the insurer initially filed timely and proper notice with the Fund, and thus its failure to renotify the Fund prior to October 1, 1995 constituted a withdrawal of the claim under P.A. 95-277, § 3 (e).
Pursuant to § 31-349 as amended by P.A. 95-277[1] there are two types of notice that an insurer may give to the Fund regarding transfer of a claim based on an injury prior to July 1, 1995. Specifically, § 3 (e) of the Public Act provides for renotification of claims for transfer of injuries “for which the fund has been notified prior to July 1, 1995.” The employer or insurer seeking transfer is required by this section to resubmit
notice of its intent to pursue transfer to the Fund by certified mail prior to October 1, 1995. There is no filing fee under § 3 (e). The other type of notice under P.A. 95-277 is provided under § 3 (b). This section provides a means by which initial
notice to the Fund must be given of the intent to pursue transfer of a claim. Under this section, the employer or insurer seeking to transfer liability for a claim must notify the Fund “no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier.” Section 3 (b) also requires other materials to be submitted along with the notice, as well as a $2000 fee to cover the Fund’s costs in evaluating the claim.
In the instant case, the respondents contend that they have complied with the filing requirements of § 3 (b), as the notice filed on December 28, 1995 was filed within three years following the date of injury (September 20, 1993). The respondents rely on Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (August 4, 1997). The Fund argues that the claim for transfer was withdrawn with prejudice pursuant to § 3 (e) when the respondents failed to resubmit notice prior to October 1, 1995.
In Audi, supra, the insurer’s initial notice to the Fund was late when it was filed on February 8, 1995, prior to the enactment of P.A. 95-277. Subsequently, the insurer filed notice with the Fund on July 5, 1995. The board held that the notice of July 5, 1995 did not constitute renotification pursuant to § 3 (e), reasoning that the insurer could not renotice an initial notice which was untimely. However, the board ruled that the July 5, 1995 notice may have constituted proper notice pursuant to § 3 (b), and remanded the case on that issue.
In Audi, supra, the board explained as follows:
We agree that the filing of a timely re-notice under § 3 (e) of the Public Act would not cure a prior untimely notice under the previous version of § 31-349, which required that notice be filed at least 90 days before the 104th week of disability had passed. Section 3 (e) specifically refers to claims “for which the fund has been notified prior to July 1, 1995.” By “notified,” the legislature meant properly and timely notified, rather than unsuccessfully notified. Section 3 (e) clearly deals with pending notice claims that the Fund had been apprised of prior to July 1, 1995, and forces the party seeking transfer to reaffirm its intent to pursue its claim, as all claims were “deemed withdrawn with prejudice” subject to renotification by October 1, 1995. See 38 S. Proc., Pt. 15, 1995 Sess., p. 5487 (remarks of Sen. Kissel). Nowhere in this provision does the legislature evince an intent to allow parties that have missed the filing deadline in the past to resurrect those claims by “re-notifying” the Fund of their intent to seek transfer. One can not reaffirm one’s intent to pursue a claim that has already lapsed due to improper observance of § 31-349‘s procedural rules. Audi, supra, (emphasis added).
In Audi, supra, the board explained that P.A. 95-277 was intended to apply retroactively to injuries that occurred when the previous version of § 31-349 was still in effect. Id., citing Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282, 302-303
(1997). “No line was specifically drawn between cases that could have transferred under the old law assuming timely notice and cases that were not ripe for transfer until the new law was in effect, however.” Id. The board further explained that “[t]here is simply no language in the amendment to suggest that P.A. 95-277 [specifically the initial notice provision of § 3 (b)] is inapplicable to claims in which notice previously filed under the existing version of § 31-349 was untimely.” Id.
In the instant case, unlike Audi, supra, the trial commissioner specifically found that the initial notice filed on January 10, 1995 was both “proper and timely.” (Finding No. A). We do not agree with the Fund’s argument, however, that the insurer’s failure to renotify to the Fund prior to October 1, 1995 extinguished its right under § 3 (b) to provide notice to the Fund under the requirements of that section. Rather, these two sections are written as separate provisions, and we would be adding language to § 3 (b) if we were to interpret it as allowing notice to be filed only in cases where the respondent had not failed to file renotification under § 3 (e). We do not agree with the Fund that the penalty in § 3 (e) of “withdrawal with prejudice” would be meaningless if the insurer could provide new notice under § 3 (b) after failing to comply with § 3 (e). On the contrary, numerous pending claims for transfer have been filed with the Fund which involve injuries more than three years old, such that if they are withdrawn with prejudice under § 3 (e) they may not meet the time limitations of § 3 (b).
The trial commissioner’s decision is reversed, and this matter is remanded for a finding as to whether the respondent insurer’s notice complied with § 3 (b) of P.A. 95-277.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
Also among the provisions of P.A. 95-277 is § 3 (e), which states that “[a]ll claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995 of its intention to pursue transfer pursuant to the provisions of this section. No notification fee shall be required for notices submitted pursuant to this subsection. This subsection shall not apply to notices submitted prior to July 1, 1995, in response to the custodian’s request, issued on March 15, 1995, for voluntary resubmission of notices.”